Florida v. HHS Raises Key Constitutional Issues Related To Health Care Reform

The Affordable Care Act (ACA) has garnered significant national attention. It makes several fundamental reforms to the nation's health care system — including major changes affecting the country's health insurance markets. Reflecting considerable controversy over the law, opponents have fought vigorously since its passage to have it declared unconstitutional by the courts.

Path to the Supreme Court The Supreme Court will hear oral arguments addressing these issues on March 26, 27, and 28. While it usually takes several years for cases to get to the Supreme Court, many of the courts at the lower levels have fast-tracked cases relating to the ACA because some of the law's most controversial reforms are being implemented over the next 22 months and have the potential to have wide-ranging effects on the states and U.S. citizens. So as the ACA celebrates its two-year anniversary, issues key to its survival will be argued in front of the Supreme Court.

Over 20 cases have been filed challenging the constitutionality of the ACA for one reason or another. The seven cases shown in the chart below have received particular focus from commentators and the media.

The case currently before the Court, Florida v. HHS, is a consolidation of two separate lawsuits from the 11th Circuit Court of Appeals: The National Federation of Independent Businesses [NFIB] v. Sebelius and Florida et al. v. HHS. In the first case, two individuals and the NFIB, a nonprofit organization that represents small businesses, sued the Secretary of Health and Human Services, Kathleen Sebelius, arguing that the Constitution does not give Congress the authority to enact the individual mandate provisions of the ACA. In the second case, Florida and twenty-five other states sued, arguing that the ACA's Medicaid expansion is unconstitutionally coercive on state governments.

The United States Department of Justice, the states' Attorneys General, and the NFIB have written briefs detailing their legal arguments and will argue the issue in front of the Supreme Court in late March. Numerous other parties who are interested in the outcome have also written briefs as "friends of the court" or amici curiae to help persuade the Supreme Court justices to side one way or another.

Key Issues in the Case The Supreme Court is set to address a number of questions before it. Even before getting to the fundamental merits questions, the Court must decide whether it is appropriate at this time to decide the question of the constitutionality of the individual mandate. In all, the Supreme Court has agreed to hear arguments related to four separate issues.

1. The Initial Barrier – the Anti-Injunction Act Before even getting to the other issues, the Court must determine whether it can lawfully make a decision on the individual mandate at this time. The key question is whether the financial penalty taxpayers must pay if they do not comply with the mandate is a "tax." The Tax Anti-Injunction Act (AIA), a little-known law dating back to the 1800s, provides that the legality of a tax cannot be challenged in court until after the tax has been assessed. Thus, if the Court decides that the penalty under the ACA falls within the definition of a "tax," it could be prohibited from hearing the case until the first penalties were imposed — which would not occur until 2014.

   It is worth noting that both sides of the case — the plaintiffs and the government — have argued that the Court should hear and decide the case now. However, the Supreme Court has, at its own initiative, raised this as an important issue and even appointed special counsel to argue the issue.

   It is also worth noting that the briefs and question posed by the Court on the issue...